Ex. C.R. EXCHEQUER COURT OF CANADA 293 BETWEEN: 1961 March 23, 24 THE SHIP ARGYLL AND HER OWN-1962 ERS, (Defendants and Counter-Claim- APPELLANTS; May 2 ants) AND THE OWNER OF THE SHIP SUNIMA, RESPONDENT. AKSJE SELSKAP I.M.A. (Pla intlff) . Shipping—Collision in Quebec City Harbour—Negligence of defendant ship sole cause of collision—Contravention of Rules 99, 25 and 22 of the International Rules of the Road—Appeal dismissed. Respondent recovered judgment against the appellants for damages resulting from a collision between its vessel and that of the appellants. From that judgment the defendants now appeal to this Court. Held: That on the facts as found by the learned trial Judge the appeal must be dismissed. 2. That the collision and resulting damage were caused solely by the negligence and fault of those in charge of appellant ship in contravening rules 29, 25 and 22 of the International Rules of the Road in that they failed to keep to the side of the fairway or mid-channel which lay on their starboard side, in failing to post a look-out on the bow of the vessel and in altering the course of their vessel to port which brought her on a course which crossed that of plaintiff vessel. 3. That this court sitting in appeal'in admiralty matters will not interfere with the judgment of the lower court as regards pure questions of fact or the quantum of damages unless it appears clearly erroneous. The S.S. Ethel Q v. Adelard Beaudette, 17 Ex. C.R. 505 applied. APPEAL from the judgment of the District Court in Admiralty for the Quebec Admiralty District. The appeal was heard before the Honourable Mr. Justice Dumoulin at Montreal. Jean Brisset, Q.C. and Bruno Desjardins for appellants. R.C. Holden, Q.C. and A. S. Hyndman for respondent. DUMOULIN J. now (May 2, 1962) delivered the following judgment: This is an appeal from a decision rendered June 29, 1960, by Honourable Justice Arthur I. Smith, District Judge for the Admirality District of Quebec, maintaining the Plaintiff's action and, consequently, dismissing the Defendants and Counter-Claimants' pleas. 53477-6—la
294 EXCHEQUER COURT OF CANADA [1962] 1962 The maritime mishap, from which stems the instant suit, THE sate happened between 0200 and 0205 or 0206 hours, the night Argyll v. of May 27, 1959, within the limits of Quebec City harbour. THE salP Su mma Weather conditions were excellent, a clear, starry nigh t , , no wind, a calm sea. An ebb tide was flowing east at an Dumoulin J. approximate velocity of 3 to 3 knots. Despite these favourable climatic factors, a serious collision occurred causing considerable damage to both ships when they rammed one another in the circumstances here-under narrated. The vessels concerned, the Sunima and Argyll, can be described as having respectively: The Sunima: an overall length of 354.95 feet, a breadth of 48.65 feet; 3,903.06 tons gross, 2,118.97 tons net register, and manned by a crew of 34. At full speed, loaded, she could develop 144 knots, hourly. Of Norwegian registry and build (1958), the Sunima is a steel, single screw, diesel cargo motor ship, with a draught of 9'9" forward and 15'10" aft. Her bridge is located amidships and her housing quarters aft. The Argyll, built in Japan in 1957, has an overall length of 504 feet, a breadth of sixty-two feet six inches (62'6"), a gross tonnage of 10,657 and a net register of 6,304 tons. She attains, at full speed, 15 knots, and 11 at half speed on 60 R.P.M. This ship, an oil burning one, has a single right-hand propeller; her draught, if travelling light, as on this ill-fated trip, reads 6'6" forward, and 19'6" aft. Her wheel-house is located 366' aft of the stem. Of Liberian registry (Port of Monrovia), the Argyll, on May 27, 1959, had a Greek crew of 37 men. The Sunima's Master was Captain Sverre Swertsen, the Argyll's Captain, Antonios Corcodilos. Pilot Moise Dionne navigated the Sunima and Pilot E. Gourdeau the Argyll. At the material time, the Sunima, laden with 741 tons general cargo, had begun a voyage from Montreal to the British West Indies, whilst the Argyll made way, in ballast, from Port Alfred to Sorel, P.Q.; the plaintiff ship, therefore, going down river, in an out-bound direction, and defendant vessel steering an in-bound upstream course. In a general way, it may be said that the collision took place about two miles (nautical) below Quebec City pilot-age station, but of this more will be written.
Ex. C.R. EXCHEQUER COURT OF CANADA 295 Possibly not the most concise mode, but I believe, a help- 12 ful and revealing one, of setting forth the flatly divergent Tm SHIP Argyll explanations resorted to by the contending parties, will con- sist in textually inserting paragraph 12 and, partially para- graph 16 of the Combined Preliminary Acts. — Dumoulin J. In paragraph 12, then the Sunima's version is that: She was on a voyage to the British West Indies, via Halifax, N.S. As the Sunima approached the Pilotage Station in the Harbour of Quebec her engines were stopped and her way reduced. After changing pilots, the Sunima proceeded on down the channel on the usual outward bound course. When about opposite the entrance to the St. Charles River Basin and in about mid-channel the red side light and masthead lights of an upbound ship (which turned out to be the Argyll) were sighted about two points on Sunima's starboard bow and distant about 1 to 2 miles. Sunima was altering course gradually to starboard and expected to meet and pass the Argyll port to port in the usual manner but shortly afterwards it was noticed that the Argyll appeared to be altering her course to port, opening her green light and closing her red. The course of Sunima was altered further to starboard and a signal of one short blast was sounded by her. The Argyll did not reply and continued to swing to port evidently intending to cross ahead of Sunima. The engines of Sunima were put full speed astern and her wheel hard to starboard and an attention signal of several short and rapid blasts was sounded, but the Argyll came on, crossing in front of Sunima and making collision inevitable. Next, the Argyll's plea reads thus:— The Argyll had been proceeding upriver with her engines turning at full speed and her telegraph on stand-by; upon entering the limits of the Harbour of Quebec, her speed was reduced to half. After sighting the lights of the Sunima, the Argyll kept her course and speed, keeping well on her own side or north side of the channel and expecting to meet the Sunima which was down-bound, red to red; about 4 cables above Buoy 87B the course of the Argyll was altered to 250° True, in order to make the bend in the channel leading into the dock area of the Harbour of Quebec, bringing Buoy 138B to bear fine on the starboard bow; the green light of the Sunima which was then bearing fine on the port bow of the Argyll was kept under close observation as those on board the Argyll, expected her at any moment to alter course to starboard in order to effect a port to port meeting; the Sunima, however, kept on showing her green, shaping to be on a course crossing that of the Argyll from port to starboard at very close quarters, whereupon it became apparent that a collision would be unavoidable unless action was taken by the Argyll; the wheel of the Argyll thereupon was ordered hard-a-port and a signal of 2 short blasts blown and the Argyll began to swing to port; simultaneously, the Sunima was seen to alter her course sharply to starboard closing her green and opening her red on the starboard bow of the Argyll, and the collision occurred after which the engines of the Argyll were stopped; by reason of the impact, the swing of the Argyll's bow to port was accentuated and the Sunima continued to swing to starboard until both vessels came to head south; various manoeuvres being made until both vessels were clear. 53477-6-1îa
296 EXCHEQUER COURT OF CANADA [1962] 1962 The point of impact can be fairly well located, the THE SHIP weight of evidence lending reasonable probability to Pilot Argyll Dionne's reckoning who indicated it by letter "D" on chart THE Sun Sa 1321 (Plaintiff's ex. P-1), and on page 28 of the transcript is reported to have said that: Dumoulin J. A. It happened in between the two (2) dry docks, just at the end of the outfitting dock there .... It would be between the Lorne and the Champlain dry docks, a little to the east of the outfitting dock. Such an estimation disagrees with the marking "G", pencilled in red on the same map, as giving Pilot Gourdeau's and Captain Corcodilos' versions, situating the critical spot well to the north of mid-channel. This suggestion is inadmissible for several reasons, the first of which shows through appellants' paragraph 12 of the Combined Preliminary Acts. The Argyll's emergency step is therein given as "hard-a-port" order, with the subsequent recognition that "both vessels came to head south" manifestly implying south of mid-channel and in Sunima's starboard lane. On this significant point I share the learned trial Judge's opinion that: There is no evidence to show that the Sunima was at any time to the North of mid-channel save and except for the calculations made by the Argyll's Pilot and Master as to the place of the collision. The testimony . of these witnesses however on this point is confused and, in particular, that of Pilot Gourdeau appears to have completely disregarded and failed to take into account the Argyll's alteration from course 270 to 250 and the fact that the Argyll was undoubtedly on course 250 for upwards of two minutes prior to her going hard-a-port just prior to the collision. The position of impact suggested by Pilot Dionne differs somewhat from that found by the Court below, and would be about 4 cables beyond Buoy 87îB; however, I quite agree with my assessors that it had no material bearing on the actual cause of the collision. According to the indications jotted down on chart 1321, i.e., the letters "S" and "A", Pilot Dionne, who testified to this, sighted the Argyll's red side lights and masthead lights when his own ship stood opposite the entrance to the St. Charles River Basin, a stretch of roughly two (2) miles separating the vessels (cf. Dionne, p. 17). On the other hand, the Argyll's Master, Antonios Corcodilos (cf. his evidence, pp. 27-28), perceived the down-bound Sunira a few
Ex. C.R. EXCHEQUER COURT OF CANADA 297 minutes later, at 0203, when Pilot Gourdeau rang a half 1962 speed signal preparatory to altering the course from 270° THE SHIP' to 250°, as required by a rather sharp bend in the channel. Av yll Now, this variation, which swung the in-bound Argyll to Si mm port, towards the Sunima, must, if imprudently made, bear Dumoulin J. a heavy burden of responsibility as a proximate cause in the — genesis of the accident, especially so since its critical phase evolved within, probably, no more than two minutes, from 0203 to 0205. Athanasios Klendos, the Argyll's Chief Engineer, reported that as closely as he could figure, the impact occurred at 0205, "because at that time it is between two movements", very likely those of half speed and hard-a-port (p. 133). In line with the verbal indication of 0205 is the mute evidence of appellants exhibit A, the Chief Officer's log book, registering under date of May 27, 1959, a gyro course of 270° at 0200, continuing until 0205, when the reading is 250°. Constantinos Valmas, Second Officer on the Argyll, corroborates Klendos as to the time, 0203, at which a half speed order was rung. In Valmas' evidence some assertions sound unconvincing. For instance he says the Sunima was 2 or 3 cables distant when he last saw her prior to the collision, and that her green and masthead lights were open to the Argyll's port side (trans. p. 154). He then descended below deck and, less than two minutes later, when the tremendous shock took place, no possibility of a collision came to his mind, but this only and I quote (p. 157) : A. I thought that the ship was aground and that is all. Q. by Mr. Brisset, Q.C. Why did you think the ship was aground? A. Because we had passed very near the. West Point Light. Q. Where did you think the other ship was? You did not think there was a collision with the other ship? A. No. Q. Where did you think the other ship was? A. That she was far away. Q. Where did you think the other ship was? A. Far to the port side, I thought. Whatever credence this testimony might deserve the fact persists. that Second Officer Valmas positively felt the course steered by the Sunima, a few score seconds before the mis- hap, offered no danger because the latter "was far to the port side". If this be better than guesswork, what then did
298 EXCHEQUER COURT OF CANADA [1962] 1962 bring the vessels in immediate contact? Manifestly a false TEE SHIP move; but on whose part? Such is the moot point the Court Argyll v. must solve. San, S The respondent's story, if I be permitted this expression, is coherently related in a precise, unvacillating manner by Dumoulin J. Pilot Dionne, who sighted the in-bound Argyll two miles off, abeam Ste. Petronille light, showing her 2 masthead lights and her red ones. Dionne had set a course of 070, which he increased to 080 on perceiving the other ship's "red and green side lights and the two (2) mast lights almost in line or practically in line ... and at the same time watching the Argyll" (Trans. pp. 17-18). As the on-coming steamer passed abeam of Buoy 872B, continues Dionne, "with all her lights in line toward me", there lay an intervening space of roughly three quarters of a mile (p. 19). The Sunima's wheel was turned to starboard on an 080° run. From there on; Dionne could not understand the unusual route on which the other boat kept going and he next saw her green lights as both ships came very close (p. 20). He ordered another five (5) degrees, and a few seconds later, one short warning blast and hard to starboard. Nonetheless, the Argyll "seemed to go more to port; so then I gave the order to stop the ship and to go astern; but by then the two (2) ships were pretty close together", pursues Pilot Dionne, who finally states that the Argyll headed across the Sunima's way at an angle of two or three points, with the dire consequence that the Sunima's stem hit the other vessel's starboard bow 20 or 25 feet abaft her stem. (cf. exhibits P-8 (a & b), P-9 (a & b), and pp. 21-22). On appellants' behalf the Master, Captain Antonios Cor-codilos, and Pilot Ernest Gourdeau, of Quebec City, testified at great length. A diligent sifting of their evidence -leaves me skeptical, and under a persistent impression that in some measure, on crucial points, it results from afterthought or even wishful thinking. The Court does not alone entertain a somewhat dubious opinion. For motives different, doubtless, but verging towards comparable results, the appellants' learned counsel could not compile a 57 page "Synopsis of Argument" without incurring the annoyance of taking polite yet firm exception to some important parts of the evidence adduced by his four principal witnesses, the Captain, the Pilot, the Chief Engineer and the Engineer of the Watch.
Ex. C.R. EXCHEQUER COURT OF CANADA 299 Starting on page 36 of this written submission, we find 19 62 Pilot Gourdeau reproached thus: THE SEE Argyll Pilot Gourdeau in his evidence in chief evidently made a mistake v. at Page 164 of the Transcript of the Evidence at the trial, when he TICE SHIP stated her course (i.e. the Sunima's) as being 020°T. to 025°T. He later Sunima corrected that to in between 045°T. and 055°T. at P. 207. Dumoulin J. I may remark that this so-called correction on pages 207 and 208 does wear a conjectural appearance. On page 38 of the Synopsis, Gourdeau is blamed for his inaccuracy in stating that the Sunima was bearing about 3 points on the Argyll's port bow. Lower, on the same page (38), we read that: In the Argyll's Preliminary Act, it is alleged that such change of course took place 4 cables above Buoy 871B, while in her Statement of Claim, it is alleged that this change took place between 3 and 4 cables above Buoy 873B. The evidence of Captain Corcodilos (Trans. Argyll, P. 32) is to the effect that the change of course was made 4 cables past Buoy 87B. Pilot Gourdeau in his evidence (Trans. Trial, P. 165), gave this distance as being 5 cables past Buoy 871B. He stated, however, that the green light on the Outfitting Wharf of Lome Drydock was bearing 60° on his port side when he made the change, this being his usual mark; however, according to our plotting, this places the Argyll more like 4 cables above Buoy 873B (the emphasis is not in the text). In a wide expanse of river those discrepancies would be of slight moment, but in the restricted harbour lanes within which the collision happened, a matter of two cables more or less, 1,200 feet, spells the difference between safety and disaster. Furthermore, must we deal with three separate course plotters, the Master, the Pilot and some eerie helmsman, anonymously hinted at by the expression "according to our plotting"? More indicative, still, of the many inconsistencies alluded to above, are Mr. Brisset's criticisms aimed at certain statements of the Engineer of the Watch, Valmas, and Chief Engineer Klendos. I deem appropriate to reproduce the whole paragraph from page 40 of the Appellants' Synopsis of Argument: The only witness on the Argyll who gave 0205 as the time of the collision was the Engineer of the Watch, but in this he is contradicted, and we submit that he was in error; in any event, he contradicted himself by stating that the collision occurred one minute before he received the stop order which he recorded as having been rung at 0208. The Chief Engineer, it must be conceded, had recorded in his own Log Book that the collision had occurred at 0205 but it seems that this was an estimate on his part, which might have been based on a hasty consideration of the actual events, but evidently, having made the entry,
300 EXCHEQUER COURT OF CANADA [1962] 1962 the Chief Engineer was committed although he conceded that the time S̀ was purely an estimate and that the time he entered would not neces-TArgyu sadly be as accurate as the time of an order received from the bridge. y, The estimate in any event was made only after the collision (Trans. THE SHIP Argyll, P. 33, 34 & 35). The engine of the Argyll was not stopped until Summa 0208 which, if the collision occurred at 0205, would mean that it was Dumoulin J. kept turning at half speed ahead for 3 minutes after the collision. This is hardly likely and much more probable that the engine was stopped not long after the collision and that therefore the collision occurred at 0207 rather than at 0205. If the preceding analysis of the reliance attaching to such a style of hypothetical and ex post facto evidence, should extend from the learned counsel's mind to my own, I could, possibly, feel warranted, to dismiss the appeal without further ado. I will, however, persist in disposing of the remaining angles of the case. My attention was also attracted by certain answers of Captain Corcodilos in reply to his principals' lawyer. The excerpts hereunder are taken from pages 36, 37 and 38 of the transcript. By Mr. Brisset: Q. Now, we would like you to tell us in your own words what happened after that? A. Yes. I saw that the ship (Sunima) was not changing her course, a thing that we thought he ought to do before that. Then I saw her very close, the distance was getting smaller and there was danger of a collision as we were going. It was about a cable (600') or something like that so I decided the only manoeuvre I could do was to put the wheel hard to port to pass— to port to pass green to green, because we were very close. Also at the same time the pilot gave the ORDER "Hard to port". Next, ten lines down, on page 37 of the transcript, a suggestive question is put to Captain Corcodilos in examination in chief ; I quote: Q. Now, in what direction was she heading in relation to your bows? Was she (Sunima) crossing your bows in one way or another? A. She was crossing our head. Q. In what direction? A. From port to starboard. * * * Q. Now, Captain, at that stage would it have been possible for you to go to starboard? A. No. Q. Why? A. First there was very close the shallow water to the north. The river is very shallow water here.
`S
Ex. C.R. EXCHEQUER COURT OF CANADA 301 As one might expect, those leading questions met with 1962 due compliance, though not dispelling all doubts regarding THE SHIP the feasibility for the Arvyll Sunima to keep on her course, ("was . not changing her course", has just said Corcodilos), and, Sunsmâ simultaneously, be crossing the Argyll's stem "from port Dumoutin J . to starboard". — The alleged proximity of shallow water to the Argyll's starboard at point "G", marked by Corcodilos and Pilot Gourdeau on plaintiff-respondent's exhibit P-1 (official chart no. 1321), reveals, on the Master's part, sailing up-river for the second time only, his ignorance of the soundings reported on that map; the depth, thereabouts, ranging from 121 to 128 feet. The Beauport shoreline, in a northeasterly direction, with an outer depth of 40 feet, lies about 4 cables to the right of point "G", surely affording sufficient room for a swing to starboard of a vessel with a forward draft of 6'6" and an aft one of 19'6". A last instance of conflicting testimonies will finalize this chapter. Pilot Gourdeau, on examination by defend-ant-appellant's counsel, is asked (transcript p. 171, top line) : Q. Now, how far off was she (the Sunima) when you altered course from two seven oh (270) to two five oh (250)? A. She was about a mile and one-quarter (1-1) above me. Oddly enough, the Argyll's Master, who at the time stood "in the wheelhouse, close to the pilot" (trans. p. 33), answers, to this selfsame question, that the other ship was then distant: "About three (3) cables" (trans. p. 33, bottom line). Quite a gap indeed between a mile and one quarter, or 6,600', and three (3) cables, or 1,800', on the part of two trained seamen, had their attention been really focussed upon an identical object. SPEED— The appellants' statement of defence and counterclaim at paragraph 14, affirms that: The Sunima was proceeding at an excessive and immoderate rate of speed in contravention of the Regulations of the National Harbours Board in force in the Harbour of Quebec; Operating regulations of the National Harbours Board, Order in Council (P.C. 1954-1981), dated December 16, 1954, section 35 (1) enacts that: 35(1) No vessel shall move in the harbour at a speed that may endanger life or property
302 EXCHEQUER COURT OF CANADA [1962] 1962 (2) without restricting the generality of subsection (1) no vessel T shall move at a rate of speed exceeding Argyll at Quebec—nine knots. v. THE sam Apparently, these cautioning directions were disregarded Summa by Pilot Dionne, and the learned trial Judge was so advised Dumoulin J. by his assessors. I also had the assistance of experienced seamen in whose estimation the Sunima proceeded at a speed of 18 knots over the ground. Pilot Dionne at page 112 of his evidence suggests the reason for such regulations. Explanations are, of course, predicated on their respective degree of plausibility, but, at all events, it seems worthwhile to relate this one at length. Dionne, asked by cross-examining counsel: ... Pilot, do you not agree that a speed of this kind makes it very easy to miss the turn when the turn has to be made? replies: No, sir. The speed of a ship at Quebec—the regulation is made for ships alongside the wharfs here, so as not to make too much sea, too much waves. It is not for the waves that regulation is made but it is made for the ships that are alongside the wharf. And that night there were no ships at Quebec, there, and the weather was very clear and calm (trans. p. 112) Irrespective of Dionne's interpretation, this is not a penal action for infringement of speed regulations, and this derogation concerns the Court insofar only as the evidence indicates it was a proximate cause of the accident. The Court below deleted speed as a contributing element, and nothing in the record perused would justify me to hold differently. LACK OF PROPER WATCH ON THE ARGYLL— The learned trial Judge, at page 8, last paragraph, writes: Those on board the Argyll were, moreover, guilty of fault and negligence in failing to post a lookout on the bow of the vessel having regard to the admitted difficulty of distinguishing ships' lights against the back-ground of the lights of Quebec City and harbour front. I have no doubt that the failure to post a lookout contributed to the bringing about of the collision, since I am convinced that the Sunima was not sighted by those in charge of the Argyll as soon as she should have been. I fully agree with the tenor of this finding, both as to the poor seamanship and grave imprudence of omitting the regular look-out and watch precautions, especially at night, within frequented harbour lanes, and also as to the confusing glare of city lights shimmering on the glossy surface of calm waters.
Ex. C.R. EXCHEQUER COURT OF CANADA 303 The Argyll, a bulk dry cargo vessel, 504 feet overall 1962 length, has her bridge and wheelhouse aft, a peculiarity Trim Sun, which, presumably, does not detract from the urgency of Arg yll posting the usual look-out. THESsm Summa Nonetheless, Captain Corcodilos, at pages 75, 100 and 101, J. admits that the look-out and second officer went down, two Dumouln or three minutes before the collision, to inspect the port and pilot ladders. Some seconds before the impact, Captain Corcodilos, new to St. Lawrence sailing intricacies, and Pilot Gourdeau, busy with the ship's navigation, stood alone on the aft deck. This unusual state of affairs is conceded in the Appellants' Synopsis, and an attempt had at brushing it aside as of slight consequence, since, so the allegation goes, watch or no watch, look-out or no look-out, the accident would have taken place just the same; an assumption presupposing, at best, a brimful measure of surmising. Sighting the Argyll, the Sunima could expect the former had also located her, as normally she should have, and would not resort to an unpredictable alteration from 270° to 250°, plus a further deviation hard to port, thereby rendering the collision unescapable. As for so sudden a change of course, my assessors believe it happened "prematurely, and had (the Argyll) continued on 270 degrees for a little longer time, the risk of collision would not have existed and both vessels would have passed safely port to port". The preponderance of evidence favours this opinion. And the origin of all errors attributable to the Argyll's navigators springs from a lack of diligent surveillance. The pertinent jurisprudence, of which two instances follow, insists on the urgent need of having continuous and properly posted look-outs. In Re: The Silver Cityl, Mr. Justice Higgins, sitting in the Supreme Court of Newfoundland, (in Admiralty) wrote: . . . To constitute a good look-out on a ship there must be a sufficient number of persons stationed for the purpose, who must know and be able to discharge that duty. The look-out should not have any other duty to perform (The Glannibanta, 1 P.D. 283). The officer of the watch or the man at the wheel does not satisfy the requirements as to look-out (the Hibernia, (1874) 2 Asp. 454. (Emphasis is mine). 1 (1935) 51 Lloyd's List L.R. 135 at 143.
304 EXCHEQUER COURT OF CANADA [1962] 1962 and Mr. Justice Winner (The Admiralty Division), in Re: THE SHIP The Dea Massellal spoke to this effect: Argyll V. ... Having prefaced what I have to say with those remarks, I do THE SHIP want to go on to say that I am not satisfied as to the look-out which Sunima was kept on board either of these vessels. In particular, I am not satisfied Dumoulinj. with the fact that both vessels sought to station their look-out men on the bridge, the navigating bridge. That is a matter on which I have already, in previous cases, on the advice of the Elder Brethren, commented adversely; and I thought it right to ask the Elder Brethren who are advising me in this case what is their view of the practice of stationing the look-out man on the navigating bridge. They, like other Elder Brethren who have previously advised me, again condemn that as bad practice. They tell me that the look-out should certainly be stationed somewhere else in the ship; forward, if possible, if the weather conditions allow it. If, however, the weather is such as to forbid the possibility of a look-out being posted forward, then at least he ought to be stationed on the upper bridge. They express the view, which I think I have already included in my judgment in previous cases in this Court, that it is most important to station the look-out in a position where his attention will not be distracted by what is going on on the bridge, where he will not be perpetually listening to discussions taking place between the master and the officer of the watch, or between the officer of the watch and the helmsman, but where he can give his undivided attention, to what he is himself able to see and hear .. . Lastly, there exists little room for doubt but that Appellants' officers contravened the International Rules of the Road, particularly articles 20, 25 and 22, hereafter cited according to their chronological sequence of occurrence. Article 29: Nothing in these rules shall exonerate any vessel, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. Article 25: In narrow channels every steam vessel shall, when it is safe and practicable keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel. Article 22: Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other. For an ultimate summing up of my findings in this appeal, I could do no better than adhere to the learned trial Judge's conclusions who then wrote: I am satisfied that the casualty was brought about solely by the fault and negligence of those in charge of the Argyll, in that they improperly failed to keep to the side of the fairway or mid-channel which lay on their starboard side and instead of altering course to starboard, 1 [1958] 1 Lloyd's Rep. 10 at 21.
Ex. C.R. EXCHEQUER COURT OF CANADA 305 as they could and should have done when the Sunima was sighted, they 1962 altered to port in a manner which brought the Argyll on a course which THE SHIP crossed that of the Sunima. Argyll Those on board the Argyll were, moreover, guilty of fault and THE SHIP negligence in failing to post a lookout on the bow of the vessel having Sunima regard to the admitted difficulty of distinguishing ships' lights against — the back-ground of the lights of Quebec City and harbour front. I have Dumoulin J. no doubt that the failure to post a lookout contributed to the bringing — about of the collision, since I am convinced that the Sunima was not sighted by those in charge of the Argyll as soon as she should have been. Finally, ex majore cautela, merely, and nowise restricting my full concurrence with the above pronouncement, the doctrine applicable in an appeal such as the instant one, was adequately formulated by the late Mr. Justice Audette in the matter of The S.S. Ethel Q v. Adélard Beaudettel, I quote: Sitting as a single judge in an Admiralty Appeal from the judgment of a trial judge, while I might feel obliged to differ with great respect in matters of law and practice, yet as regards pure questions of fact or the quantum of damages, I would not be disposed to interfere with the judgment below, unless I came to the conclusion that it was clearly erroneous. For the reasons preceding, this appeal and the corollary counter-claim are dismissed. The respondents will recover the costs incurred in both this Court and that below. Judgment accordingly. Reasons for judgment of A. I. overall and 48.65 feet in breadth Smith, D.J.A.:— and manned by a crew of 34 all This litigation, comprising Prin- told. On May 27, 1959 the Sunima, cipal Action and Counter-Claim, laden with about 741 tons general arises out of a collision which cargo was on a voyage from Mont-occurred between the Ships Sunima real to the British West Indies. The and Argyll within the limits of the weather was clear with good visibil-Harbour of Quebec at approxi- ity and there was little or no wind. mately 0205 hours (E.S.T.) on The tide was ebb of a force of about May 27, 1959. 2 knots. The Sunima was exhibiting The case for the plaintiff is as the regulation navigating lights follows:— The plaintiff is and was which were burning brightly and a at the time of the collision herein- good lookout was being kept on after referred to, the owner of the board her. Early in the morning of Norwegian motor-vessel Sunima, a the said May 27 the Sunima, when steel single screw cargo vessel of approaching the Pilotage Station in the Port of Oslo, Norway, of the Harbour of Quebec, reduced her 3,903.06 tons gross and 2,118.97 tons speed and then stopped her engines, net register, 354.95 feet in length taking off her way in order to 117 Can. Ex. C.R. 505 at 506.
306 EXCHEQUER COURT OF CANADA [1962] 1962 change pilots. After changing pilots, Sunima. They improperly attempted Tan Sam the Sunima proceeded on down the to cross ahead of Sunima. They Argyll channel on the usual outward failed to ease, stop or reverse their v. bound course. When about opposite engines in due time or at all. They Tas Sam the entrance to the St. Charles failed to sound proper signals in Sunima River Basin and in about mid- accordance with the regulations. Dumoulin J. channel the red light and masthead They failed to exercise the precau- lights of an upbound ship (which tions required by the ordinary prac-turned out to be the Argyll) were tice of seamen or by the special sighted about two points on circumstances of the case. They Sunima's starboard bow and dis- failed to take in due time or at all tance about 14 to 2 miles. Sunima proper or any steps to avoid the was altering course gradually to collision. They contravened Rule 18, starboard and expected to meet and 19, 22, 23, 25, 27, 28 and 29 of the pass the Argyll port-to-port in the Regulations for Preventing Col-usual manner but shortly after- lisions at Sea. wards it was noticed that the Argyll The case of the Defendants and appeared to be altering her course Counter-Claimants is as follows:— to port, opening her green light and The Defendants and Counter-closing her red. The course of Claimants, Villaneuve Compania Sunima was altered further to star- Naviera, S.A. of Panama, are and board and a signal of one short were at the time of the collision blast was sounded by her. The hereinafter referred to, the Owners Argyll did not reply and continued of the Liberian Steamship Argyll to swing to port evidently intending a steel, single screw cargo vessel to cross ahead of Sunima. The registered at the Port of Monrovia, engines of Sunima were put full of 10657.46 tons gross and 6304 speed astern and her wheel hard to tons net register, 504' in length starboard and an attention signal of overall and 66.90' in breadth, several short and rapid blasts were equipped with steam turbine sounded, but the Argyll came on, engines developing 7150 S.H.P. and crossing in front of Sunima from manned by a crew of 37 all told. port to starboard. The collision then In the early hours of May 27, occurred, the starboard bow of 1959, the Argyll whilst on a voyage Argyll a short distance abaft her from Port Alfred to Sorel in bal-stem striking the stem of Sunima, last, was proceeding up the River causing serious damage to the St. Lawrence, approaching the Sunima. The collision and the dam- limits of the Harbour of Quebec age occasioned to the Sunima were where a change of pilots was going caused by the fault and negligence to take place. Her engines were of the Argyll and those on board turning at full speed with her tele-her as herein alleged. Those on graph on stand-by. The weather board the improperly failed was fine and clear with good visi-Argyll to keep to the side of the fairway bility and there was little or no or mid-channel which lay on their wind. The tide was ebb and of a own starboard side. They failed to force of about-3 to 4 knots (Spring alter their course to starboard in tide) flowing in an easterly direc-due time or sufficiently or at all. tion. The Argyll was exhibiting the They improperly altered their regulation navigating lights which course to port. They negligently were burning brightly, an(' a good failed to keep a good lookout. They lookout was being kept on board proceeded at an immoderate and her. West Point Light at the excessive speed under the existing western tip of Orleans Island was circumstances. They improperly abeam at about 0200 on a course failed to keep out of the way of of 270° True and at 0203 the speed
Ex. C.R. EXCHEQUER COURT OF CANADA 307 was reduced to half. In these cir- occasioned thereby to the Argyll 1962 cumstances shortly after the redue- were caused by the fault and negli- S r̀ a THE m tion in speed, the masthead lights gence of the Sunima and those on Argyll and green sidelight of a down- board her as herein alleged: The v. bound vessel which turned out to navigators of the Sunima negli- TEE Sarn be the Sunima were sighted bear- gently and improperly failed to Sunima ing about 25° on the port bow of keep a proper and efficient lookout. Dumoulin J. the Argyll distant about 13 to 1} They failed to keep to that side of miles. The Argyll kept on her the fairway which lay on their course of 270° keeping well to her starboard side. They failed to own side or north side of the chan- alter course to starboard sufficiently nel, expecting to meet the Sunima or at all or in due time in order to red to red. Between 3 and 4 cables effect a red to red meeting with above Buoy 873 B which was left the Argyll. They failed to keep 2 cables to port, the course of the out of the way of the Argyll. Gen- Argyll was altered to 250° True in erally, they failed to take the order to make the bend in the proper or any, or sufficient action channel leading into the dock area with helm and/or engines in due of the Harbour of Quebec bringing time or at all. They failed to indi- Buoy 138B to bear fine on the cate signals and at the appropriate starboard bow. The green light of time the action which they actually the Sunima which then came to took with helm and engines. The bear fine on the port bow of the Sunima was proceeding at an exces- Argyll was kept under close obser- sive and immoderate rate of speed vation as those on board the in contravention of the Regulations Argyll expected the Sunima to of the National Harbours Board in manoeuvre so as to effect a port- force in the Harbour of Quebec. to-port meeting. The Sunima how- The navigators of the Sunima failed ever kept on showing her green to take in due time or at all proper shaping instead to be on a course or any steps to avoid the collision. crossing that of the Argyll from They failed to exercise the precau- port to starboard at very close tions required by the ordinary quarters, whereupon, as it became practice of seamen and by the apparent that a collision would be special circumstances of the case. unavoidable unless action was The navigators of the Sunima con- taken by the Argyll, the wheel of travened Articles 19, 22, 25, 28 and the Argyll was ordered hard-a-port 29 of the International Rules of and a signal of 2 short blasts blown. the Road, and Article 31 of the As the Argyll began to swing to National Harbours Board Regula- port, the Sunima was observed to tions for the Harbour of Quebec. alter her course sharply to star- Evidence was brought on behalf board closing her green and opening of the Plaintiff that at 0152 the her red on the starboard bow of the Sunima's engines were stopped, the Argyll and the collision occurred, vessel then being opposite the the stem of the Sunima striking Pilot's station, and at 0155 Pilot the starboard bow of the Argyll Dionne came aboard. The engines just abaft the stem. The engines were put full ahead at 0158, the of the Argyll were then stopped ship then being about mid-channel and by reason of the impact, the almost opposite Queen's Wharf swing of the Argyll's bow to port heading 023. The Sunima was kept was accentuated and the Sunima on course 023 until abreast of Shed continued to swing to starboard 26. Course was then altered to 030 until both vessels came to head and the vessel continued on 030 South, various manoeuvres being until Ste. Pétronille Light was open then made until both vessels were to the North with Buoy 89B. Her clear. The collision and the damage course was then altered to 050 on
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308 EXCHEQUER COURT OF CANADA [1962] 1962 which course she continued until the bridge with Pilot Goudreau SHIP Shed 29 was slightly open with the were the Master and Wheelsman. THE Argyll inner Blue Light on the break- The Argyll, when abeam of Ste. v. water and as the Sunima passed the Pétronille Light at 0200, was put THE Snip entrance to the St. Charles Basin on stand-by and at 0203 her engines Summa the Argyll was first sighted, appar- were put at half speed, she still Dum oulin J. ently in the vicinity of Ste. Pétro- being on course 270, and about two nille Light and about two miles cables off and slightly below Buoy from the Sunima. The Argyll's mast 874B. Shortly thereafter the Sunima lights and her red light were first was first seen by those on board the sighted bearing about two points Argyll at a distance of 1 to 1 } on the Sunima's starboard bow. At miles. The Sunima's green light and about that time the Sunima altered leading lights were first sighted course to 070 and when the Argyll's about 3 points on the Argyll's port leading lights came into line the bow and those in charge of the Sunima altered another 10° to Argyll estimated that the Sunima bring her onto course 080. At that was on course 20° and 25°. time the Argyll was from I of a The Argyll continued on course mile to a mile distance and just 270 until she was about 5 cables abreast of Buoy 87B. The Sunima above Buoy 87jB when she altered then commenced to see the Argyll's 20° to port to come onto course green light and her red shutting out, 250. After altering to course 250 whereupon the Sunima altered those in charge of the Argyll saw another 5° to starboard and seconds the green light of the Sunima about later sounded one short blast and 10° on the Argyll's port bow and put her helm hard astarboard just her course was then estimated to before the vessels collided. The be between 45° and 50° and her Argyll appeared to go further to distance about 1I miles. Accord-port, so the engines of the Sunima ing to Pilot Goudreau the altera-were ordered stopped and full tion from course 270 to 250 occurred astern. The stem of the Sunima hit at 0205 hours. He testified that prior the starboard bow of the Argyll to this alteration he had Buoy 138B 20 to 25 feet abaft the stem. The on his port bow and that after Sunima, at the time of the collis- coming onto course 250 ion, was slightly South of mid- a buoy channel opposite a point midway which was assumed to be Buoy 138B between Lorne and Champlain (but which may actually have been dry-docks, a little East of and about Buoy 140B) was about 10° on his 3 cables from the outfitting dock, port bow and he was still seeing The angle of collision was between the Sunima's green light. He then 40 to 45 degrees and the time of saw the leading lights of the collision about 0204 according to Sunima closing so rapidly that he Pilot Dionne and Plaintiff's Pre- cried: "Oh, my God, to protect liminary Act. myself I will have to take action" Evidence adduced on behalf of so he went hard-a-port and about Defendants and Counter-Claimants 7 or 8 seconds later the shows that the Sunima Argyll upward-bound went onto course 270 slightly below altered to starboard about one Marand Buoy and continued on this cable. The only time Pilot course past Ste. Pétronille Light Goudreau saw the Summa's red (West Point) which she passed at light was just prior to the collision. a distance of about two cables. Her In giving his estimate as to the estimated speed over the ground place where the accident occurred at that time was twelve knots (full Pilot Goudreau expressed himself speed) there being an ebb tide giv- as follows: "We figured that we ing a current of 3 to 4 knots. On were about 5 cables above Buoy
Ex. C.R. EXCHEQUER COURT OF CANADA 309 87 a mile and a cable above West am convinced and, am so advised 1962 Point which was bearing about 80 by the Assessors, that having regard THE SHIP to 81°". to the testimony of Pilot Labrie, Argyll By Defendants Preliminary Act who was on the downbound Richard v. the place of collision is stated to de Larrinaga which met the Argyll THE SHIP about of a mile below West Point, Sunima have been "In the Harbour of Que- ~—r bec well to the North of mid- the Argyll passed West Point at a Dumouiin J. channel line about 11 cables above distance of about 2.6 cables and West Point Light bearing 81°." that her speed from then until At the time of collision the the collision occurred averaged not Argyll's Pilot, Master and Wheels- more than 10 knots over the ground, man were on the bridge. Those in so that in the time of approximately charge of the Argyll estimated that 3 minutes it took the Argyll to the collision occurred at about cover the distance from a point 0205 (although in Defendants' Pre- opposite West Point to the place at liminary Act the time is stated to which she altered course from 270 to have been between 0206 and 0207). 250 the Argyll had reached a point The evidence offered on behalf of approximately abeam of and about Plaintiff as to the speed of the 1.1 cables off Buoy 87B instead of Sunima, courses steered by her and 5 cables above and 2 cables North times of alteration of courses was of said Buoy, as estimated by Pilot not contradicted, and I am advised Goudreau. by the Assessors that they would I find that the collision occurred have brought the Sunima to at about 0205 hours. approximately that point at which, It appears therefore that there according to her Preliminary Act elapsed approximately 3 minutes and the testimony of Pilot Dionne, between the time at which the the collision occurred. Argyll passed West Point until the There is no evidence to show that time she altered course to 250 and the Sunima was at any time to_ the about two minutes from the time North of mid-channel save and the Argyll altered course to 250 except for the calculations made by until the collision occurred and that the Argyll's Pilot and Master as the Argyll in the course of approxi- to the place of the collision. mately 5 minutes at an average The testimony of these witnesses speed which, I am convinced, would however on this point is confused not have exceeded 8 to 10 knots an and, in particular, that of Pilot hour, would have covered not more Goudreau appears to have com- than 8 cables and that her posi-pletely disregarded and failed to tion at the moment of the collision take into account the Argyll's al- would have been South of mid-teration from course 270 to 250 and channel approximately 23 cables the fact that the Argyll was un-above Buoy 876, which position doubtedly on course 250 for up- corresponds substantially with that wards of two minutes prior to her testified to by those in charge of going hard-a-port just prior to the the Sunima. collision. On behalf of the Argyll it was urged that the Sunima was at fault, There are, moreover, other rea- in that she was proceeding at an sons for believing that those in excessive speed in contravention of charge of the Argyll were in error the legal limit which applies within in estimating the place of the the Harbour of Quebec. There is no collision. doubt that the Sunima's speed was Although these witnesses esti- in excess of that permitted by law, mated that the Argyll passed West but I am convinced that her speed Point at a distance of 2 cables, I was not the proximate cause or a 53477-6--2a
310 EXCHEQUER COURT OF CANADA [1962] 1962 contributing cause of the collision. have no doubt that the failure to THE On the contrary, I am satisfied that post a lookout contributed to the s$n' Argyll the casualty was brought about bringing about of the collision, since v. solely by the fault and negligence I am convinced that the Sunima THE SHIP of those in charge of the Argyll, in was not sighted by those in charge Sunima that they improperly failed to keep of the Argyll as soon as she should Dumoulin J. to the side of the fairway or mid- have been. channel which lay on their star-On the whole therefore I reach board side and instead of altering the conclusion that the collision was course to starboard, as they could brought about solely by the fault, and should have done when the negligence and lack of seamanship Sunima was sighted, they altered to of those in charge of the Argyll. port in a manner which brought the Plaintiff's action accordingly is Argyll on a course which crossed maintained and Defendants' Coun- that of the Sunima. ter-Claim is rejected, the whole Those on board the Argyll were, with costs. Failing agreement by moreover, guilty of fault and neg- the parties as to the quantum of ligence in failing to post a lookout damages to which Plaintiff is en-on the bow of the vessel, having titled, there will be a reference to regard to the admitted difficulty of the Registrar for the purpose of distinguishing ships' lights against having these damages fixed in the back-ground of the lights of accordance with the usual practice. Quebec City and harbour front. I Judgment accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.